A matter of trust: A guide to the role of executor

An executor is a role which carries great responsibility and should only be accepted if you appreciate the full scope of the task.

This was highlighted by a recent case where an executor distributed the assets of an estate on the understanding that the main beneficiary would pay the Inheritance Tax owed. The beneficiary left the country without paying the tax – leaving the unfortunate executor to pick up an eye-watering bill of more than £300,000.

If you are thinking of making a Will and choosing an executor, or if you have been asked to act as an executor yourself, it is important to find out as much as you can about the role and the expertise and qualities required. PEM’s probate team has produced a basic guide to get you started.

Choosing an executor

Firstly any executor needs to be over the age of 18. Ideally you should have more than one, preferably two or three. People commonly choose a family member, possibly their spouse and/or children and a professional adviser (often their accountant).

These must be people you can trust and who you believe will be capable of taking on the role. It can be time consuming and brings with it a lot of responsibility at a time when people will be grieving. The people you choose must be able to carry out their duties in a responsible and efficient manner.

You should also ask yourself whether the people appointed would be able to work together. You should avoid appointing people who together might come into conflict.

Give some consideration to the age of your potential executors. If you are in your fifties or sixties it may be appropriate to appoint individuals of a similar age but if you are revisiting your Will in your seventies or eighties you should perhaps ensure that younger executors are also included.

It is a good idea to consult with intended executors before appointing them in your Will to ensure that they would be happy to take on the role. It will give you peace of mind and, if they do not wish to take on the role, gives you the opportunity to consider others.

The duties and responsibilities of an executor

The duties and responsibilities of an executor do not commence until death. Essentially they are a mixture of legal, tax and administrative responsibilities, but these are often shared between the executors playing to their different strengths.

The general tasks that will need to be undertaken are shown in the box.

Executors must understand the seriousness of their role. It is a fiduciary duty: they must act in good faith, must not profit from their position, must not place themselves in a position of conflict and they must demonstrate a duty of care to the beneficiaries.

Are executors paid?

Although sometimes a Will may include a legacy to an executor, it is essentially a voluntary role which may take up a significant amount of time.  Therefore generally a lay person acting as an executor would only be able to charge for out-of-pocket expenses. This is in contrast to a professional who is usually able to charge for their services.

Can you be held liable for unpaid tax?

Yes, one of the roles of an executor is to ensure that the tax is paid.

Can you resign as an executor?

If you decide at the outset that you do not wish to accept the responsibility you can ’renounce’ the right to act and the role will be fulfilled by the other executors. That said if you have begun the process of dealing with the estate you must follow it through. You cannot then resign.

In conclusion the role of an executor is not to be taken lightly – it is for life – you are not discharged once the estate is finalised. This means that if there is further income or a claim is made against the estate you must deal with it.

If you have any questions about choosing an executor or accepting the role, our probate team would be happy to help. 

Acting as an executor

  • Check you have the most up-to-date Will and any codicil
  • Arrange the funeral if this is not being done by the family
  • Establish the assets and liabilities of the deceased’s estate
  • Protect those assets, for example securing and insuring the deceased’s home
  • Finalise any estate where the deceased was an executor
  • Complete and submit an Inheritance Tax return and Estate Tax returns if required
  • Pay any Inheritance Tax due
  • Obtain a grant of probate where required – this gives the executors legal ownership of the assets
  • Collect in the assets, recover debts and settle any liabilities
  • Hand out specific gifts and pay any legacies
  • Determine what is left and distribute the estate in accordance with the terms of the Will
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